Conway v. Hannibal & St. Joseph Railroad

24 Mo. App. 235 | Mo. Ct. App. | 1887

Hall, J.

The objection, made by the defendant, at the trial, to the introduction of the evidence touching the comparative want of safety of placing the derrick car in the train with the boom pointing to the front, viz: that the placing of said car in said manner in the train was not alleged in the petition as a ground of recovery, is made here! And we are inclined to hold that the objection is well made, for it does seem that the negligence alleged in the petition as to the placing of the derrick car in the train, was in placing said car “in said train with said boom aforesaid, pointing forward in the direction of the running train, and without any adequate or safe fastenings to fix and hold it in place,” and not in placing the said car in the train with the boom merely pointing forward. But, however that may be, the evidence was inadmissible for another reason. If the allegations of the petition were such as to authorize the introduction of the evidence, still it was inadmissible.

In Muirhead v. Railroad (supra), the petition plainly alleged the running of the derrick Car with the boom pointing in a forward direction as negligence. Concerning an instruction given in that case, based on said allegation of negligence, we said that it was without evidence to support it. We said that, “Evidence that the manner in which the derrick car was run was not the safest manner in which to run it, was not proof that said manner was careless or negligent.” And we further held that “proof that it would have been safer for the defendant to have run the derrick car with its arm or boom pointing toward the rear instead of the front of the train, was not evidence of negligence on the part of defendant for running said car with said arm or boom pointing toward the front of the train.” We adhere to the opinion thus expressed by us. The evidence referred to was, therefore, irrelevant and incompetent; it had no tendency to prove the issue.

That evidence was the only evidence introduced, so far as we have been able to discover by a careful examination of the abstract of the record, in support of the proposition that it was negligent for the defendant to place the derrick car in the train with the boom pointing to the front. It was, therefore, erroneous for the court, in the instruction given for the plaintiff, set out in the statement of the facts, to submit to the jury the question whether the accident was caused by the defendant having placed the derrick car in the train in an unsafe and dangerous position. There was no evidence to support the instruction in that respect.'

Many other questions have been argued by the ■counsel for the defendant, but we have deemed it necessary to decide only that which we have already determined.

For the error stated the judgment is reversed and ■the cause remanded.

All concur.